Introduction. A property owner must file a certificate of merit with its construction defect lawsuit based upon errors or omissions committed by architects or engineers. The failure to do so as required by Chapter 150 of the Texas Civil Practices & Remedies Code will result in dismissal of the lawsuit. In Res. Planning Associates, LLC v. Sea Scout Base Galveston & Point Glass, LLC, the Houston Court of Appeals upheld the trial court’s determination that the specifics of the certificate of merit filed by the property owner satisfied the requirements of the statute. [No. 01-19-0065-CV; 2021 WL 1375797 (Tex.App.–Houston [1st Dist.] Apr. 13, 2021, pet. Denied)].
Background and Analysis. SSBG, a non-profit corporation, spent $44,000,000 constructing a 60,0000 square foot building that housed dormitory and community rooms. SSBG retained JWC to construct the building and RPA to be the principal architect who in turn retained architect Shipley and engineer Paul. SSBG filed a lawsuit against RPA, Shipley and Paul, alleging that they were responsible for numerous construction defects.
The construction defects included a leaking and cracked roof, interior water damage, deterioration of the exterior, lighting deficiencies, and cracks in the flooring. The causes of action alleged against these Defendants were based upon negligence, breach of warranty, breach of contract, and misrepresentation. SSBG timely filed its certificate of merit or affidavit addressing the errors and omissions committed by these Defendants. The Defendants filed a motion to dismiss the lawsuit against them on the grounds that the certificate of merit wasn’t specific enough to comply with the governing statute. The trial court denied the motion and Defendants appealed.
Tex. Civ. Prac. & Rem. Code § 150.002, of the certificate of merit statute, states:
“The affidavit shall set forth specifically for each theory of recovery for which damages are sought, the negligence, if any, or other action, error, or omission of the licensed or registered professional in providing the professional service, including any error or omission in providing advice, judgment, opinion, or a similar professional skill claimed to exist and the factual basis for each such claim. The third-party licensed architect, licensed professional engineer, registered landscape architect, or registered professional land surveyor shall be licensed or registered in this state and actively engaged in the practice of architecture, engineering, or surveying.”
Stated generally, a certificate of merit is a sworn written statement certifying that the defendant’s actions were negligent or erroneous and stating the factual basis for the opinion. CBM Eng’rs, Inc. v. Tellepsen Builders, L.P., 403 S.W.3d 339, 346 (Tex. App.—Houston [1st Dist.] 2013, pet. denied). The function of a certificate of merit is to provide a “substantive hurdle that helps ensure frivolous claims are expeditiously discharged.”
Res. Planning Associates, LLC v. Sea Scout Base Galveston & Point Glass, supra, at *5.
In addressing whether the affidavit was sufficient, the Houston Court of Appeals stated:
The Texas Supreme Court has held that the language, “for each theory of recovery for which damages are sought,” in section 150.002(b) simply clarifies the statute’s application to any action arising out of the provision of professional services, regardless of legal theory, and does not enlarge the factual-basis requirement to include the various elements of each underlying theory that the plaintiff alleges.5 Melden & Hunt, Inc. v. E. Rio Hondo Water Supply Corp., 520 S.W.3d 887, 894–95 (Tex. 2017). The statute’s applicability is not limited to professional-negligence claims. Id. at 894. And, section 150.002(b) does not require that the expert’s affidavit address the elements of the plaintiff’s various legal theories or causes of action. Id. at 896. Rather, the statute “obligates the plaintiff to get an affidavit from a third-party expert attesting to the defendant’s professional errors or omissions and their factual basis.” Id. The trial court then determines whether the expert’s affidavit sufficiently demonstrates that the complaint is not frivolous. Id.
Res. Planning Associates, LLC v. Sea Scout Base Galveston & Point Glass, supra, at *6.
The Houston Court of Appeals went on to hold that the certificate of merit affidavit met the sufficiency standards set forth in the statute as interpreted by the Texas Supreme Court. Here, the expert stated in his affidavit that he reviewed the construction documents and conditions of SSBG’s building; identified and described the construction defects; articulated noncompliance with building codes and deficiencies in the shop drawings; described the failure of the Defendant architects and engineer to use ordinary care in performing their duties; and set forth the Defendants’ errors and omissions.
The Court of Appeals reemphasized that the function of the certificate of merit is to weed out frivolous claims. The Court held that the trial court did not abuse its discretion in denying the Defendants motions to dismiss SSBG’s claims.
Conclusion. A property owner must timely file a qualified expert’s certificate of merit with its lawsuit based upon errors and omissions committed by architects or engineers. Otherwise, the lawsuit will be dismissed. The primary purpose of the statute is to weed out frivolous claims. However, the statute does not require the certificate of merit to address all the elements of the property owner’s various causes of action. It only requires that the property owner obtain an affidavit from an expert addressing the errors or omissions committed by the architects or engineers. “The trial court then determines whether the expert’s affidavit sufficiently demonstrates that the complaint is not frivolous.” Id at *6.